STEVE and his extended family go on a holiday to North Queensland. Following a heated debate regarding the sleeping arrangements and the activities itinerary, he takes a walk along the beach at dusk in an area known to be populated by crocodiles.
He never returns.
Steve owned real estate jointly with his wife, Linda.
He left two daughters, aged in their 20s.
When Linda passes away 25 years later, the administration of their estates presents problems.
In terms of Steve’s estate, the court states that it has the power to make orders based on a “presumption of death” in circumstances where at least seven years have elapsed since a person was last seen or heard.
Unsuccessful searches for Steve include revenue authorities, police, social security, and public registers, but there is no evidence that Steve is alive, including the operating of a bank account or registration on the electoral roll.
Ultimately, the court rules that Steve is no longer alive.
However, because Steve and Linda owned real estate jointly, the property passes, at law, to the survivor.
Although the court rules that Steve is no longer alive, it has no evidence to decide whether he survived Linda, as unlikely as it may appear.
Fortunately, because Linda had a will, leaving her whole estate to their two daughters, the court was able to make orders to the effect that the daughters receive the real estate, regardless of which of their parents survived the other.
The court states that the case illustrates the need for law reform, to ensure that the legislation covers uncertainty in the order of deaths when the presumption of death is applied.
If Linda had entered into another relationship, a claim could have been made on her estate and if her will made provision for other persons, such as grandchildren, the court would have been faced with a difficult question of “drawing an inference” regarding the order of death, based on little to no available evidence.
This fictional column is not legal advice.
By Manny WOOD
Solicitor
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